Appeal No. EAT/400/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 17 May 1994

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MRS R CHAPMAN

	MRS E HART

MR P J HARTE	APPELLANT

METROLINE TRAVEL LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR T LINDEN
(OF COUNSEL)
Messrs Pattinson & Brewer
30 Gt James Street
London WC1N 3HA

For the Respondents	MR D WAGSTAFF
(REPRESENTATIVE)
Mr I E King
Secretary & Solicitor
London Transport
55 Broadway
London SW1H 0BD

	JUDGE PEPPITT QC:  This is an appeal from a decision of the London North Industrial Tribunal sent to the parties on 7 May 1992.  The Tribunal found that the Appellant had not been unfairly dismissed.

	The Appellant was employed by the Respondents as a bus driver.  His dismissal followed an incident on 8 June 1991 in which he is said to have insulted and threatened physical violence to his line manager, Mr Ferns.  Mr Ferns made a report of the incident and there followed a disciplinary hearing before Mr Finnegan at which the Appellant was represented by his union official.  Mr Finnegan heard Mr Ferns and the Appellant.  He found that the Appellant's behaviour had been abusive and threatening and in the light of the Appellant's bad disciplinary record he decided to dismiss.  There was an appeal before Mr Hillman and a further appeal on procedural matters to a Mr O'Farrell.  In both cases the original decision to dismiss was upheld.

	Mr Linden, on behalf of the Appellant, attacks the Tribunal's finding on the ground that in reaching it the Industrial Tribunal did not apply the proper test as set out in British Home Stores v Burchell [1978] IRLR 379.  Mr Linden submitted, in our view rightly, that in deciding the fairness of a dismissal on the grounds of misconduct the Industrial Tribunal must be satisfied upon 3 grounds; firstly that the employer had an honest belief in the guilt of the employee; secondly that the employer had in his mind reasonable grounds to sustain that belief, and thirdly that the employer had carried out as much investigation into the matter as was reasonable in all the circumstances.

	In the course of the hearing the Industrial Tribunal carried out its own enquiry into the alleged misconduct and heard witnesses who were not called in the course of the employers' disciplinary process.  They included a Mr Vincent and Mrs Harte, the Appellant's wife.  The Tribunal also considered documentary evidence from a Mrs Griffiths.  Mr Vincent argues that a fair reading of the decision requires us to hold that the Tribunal's own conclusion that in the light of the evidence which it heard the Appellant's misconduct was established, was allowed to colour its approach to the Burchell test.  It is not suggested by Mr Linden that the Tribunal's Burchell findings read in isolation of the rest of the decision did not faithfully comply with the provisions of that case; rather, says Mr Burchell, the fact that a significant part of the Tribunal's enquiry comprised its own investigation into the alleged misconduct and a significant part of the decision dealt with its conclusions as a result of that enquiry, must inevitably point to the conclusion that the Tribunal applied the wrong test and to the extent that they took into account the witnesses which were not before the employers substituted their own view for that of the employers.

	Mr Vincent does not suggest that the enquiry upon which the Tribunal embarked would necessarily have been wholly irrelevant.  It might, for example, have become relevant if a Polkey argument had been advanced, that is if the employers had sought to argue that notwithstanding any flaws in their disciplinary procedure which might be found to have occurred, the decision was plainly and unarguably right and that accordingly the Appellant should receive no compensation.  But, says Mr Vincent, that enquiry was an enquiry into compensation and because of its significance only in that respect, the Tribunal should either have heard the evidence at a different hearing or at the very least, made it plain in the course of their decision, that it was in relation to Polkey and only Polkey that the enquiry was conducted.

	The relevant findings of the Tribunal appeared in 4 separate paragraphs.  In paragraph 8 the Tribunal said:

"What is clear, however, is that Mr Ferns wrote a report concerning the incident which he passed to Mr Gilbert.  Mr Gilbert interviewed Mr Harte and there is no doubt that Mr Harte said that he was not going to answer many of the questions until his representative was there.  Mr Harte admits that he was not helpful.  Mr Gilbert, on the basis of what he heard so far, suspended Mr Harte on full pay.  He decided that there was a case to answer and the matter proceeded to Mr Finnegan who held a full disciplinary enquiry at which the Applicant was represented.  At the end of that enquiry Mr Finnegan came to the conclusion that Mr Harte had been abusive and threatening, and decided to dismiss Mr Harte."

	The second relevant paragraph was paragraph 9:

"There was a subsequent hearing before Mr Hillman.  Mr Hillman decided to hold a full hearing.  Again all the evidence was called, again Mr Harte was represented by a union official.  Mr Hillman upheld the dismissal.

and paragraph 10 says:

"There was a further appeal to a Mr 0'Farrell which was mainly on the question of procedure.  Mr O'Farrell decided that there had been no breach of procedure and upheld the two previous decisions to dismiss."

Paragraph 14 contains this sentence:

"We find that the employers did carry out a reasonable investigation and, further, that the decision to dismiss was reasonable in all the circumstances within the context of section 57 of the Employment Protection (Consolidation) Act 1978."

Finally, in paragraph 18:

"In all the above circumstances we find that there were reasonable grounds for investigation by the employers, that they carried out a full enquiry which was held properly with the Applicant represented, that there were in fact two further appeals, and we conclude that the Respondents imposed a penalty which was within the band of reasonable responses of a reasonable employer".

	These were clear findings by the Tribunal on the application of the Burchell test and it is not suggested that if they stood alone this decision could be attacked.  The question for us, therefore, is whether in the light of the investigation which the Tribunal itself embarked upon, and its findings as a result of that investigation, we should find that the Tribunal in answering the Burchell questions did not confine itself to the relevant criteria but to an extent substituted its own view for that of the employers.

	We have given this appeal careful consideration and having done so we are not prepared to find that the Tribunal's findings were flawed in the sense that we should read into them an additional factor, that is that they were reached in the light of the investigation of the facts which the Tribunal carried out.  It may well be that the Tribunal could have expressed itself differently and if it had done so the matters which Mr Vincent raised would not have been available to him.  But it has been said by this Tribunal on more than one occasion in the past that the decisions of Industrial Tribunals are not to be dissected as if they were statutes and in our judgment this Tribunal asked itself the right questions and came up with answers which were within the ambit of responses available to a reasonable Tribunal.

	Accordingly this appeal must stand dismissed.